| Matter of Moy v Board of Town Trustees of Town ofSouthold |
| 2009 NY Slip Op 03002 [61 AD3d 763] |
| April 14, 2009 |
| Appellate Division, Second Department |
| In the Matter of Sim Moy et al., Respondents, v Board ofTown Trustees of Town of Southold, Appellant. |
—[*1] Rosenberg Fortuna & Laitman, LLP, Garden City, N.Y. (David I. Rosenberg and AnthonyR. Filosa of counsel), for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Board of TownTrustees of the Town of Southold dated November 15, 2006 denying the petitioners' applicationfor a wetlands permit, the Board of Town Trustees of the Town of Southold appeals from ajudgment of the Supreme Court, Suffolk County (Rebolini, J.), dated March 26, 2008, which,upon an order of the same court dated December 27, 2007, granted the petition, annulled thedetermination, and remitted the matter to the Board of Town Trustees of the Town of Southoldfor the issuance of the requested permit with appropriate conditions.
Ordered that the judgment is affirmed, without costs or disbursements.
Initially, we note that the substantial evidence standard of review does not apply to theadministrative determination at issue here, since it was made after informational public hearings,as opposed to a quasi-judicial evidentiary hearing (see Matter of Scherbyn v Wayne-FingerLakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757-758 [1991]; Matter of Zupa v Board of Trustees ofTown of Southold, 54 AD3d 957 [2008]; Matter of Halperin v City of New Rochelle, 24 AD3d 768 [2005]).Thus, the question before us is whether the determination was affected by an error of law, or wasarbitrary and capricious or an abuse of discretion, or was irrational (see CPLR 7803 [3];Matter of Zupa v Board of Trustees of Town of Southold, 54 AD3d at 957; Matter ofHalperin v City of New Rochelle, 24 [*2]AD3d 768 [2005]).
Contrary to the Supreme Court's determination, the Board of Town Trustees of the Town ofSouthold (hereinafter the Board) acted within its discretion in hiring an outside consultant andrequiring the petitioners to pay the consultant's fee. Under Town of Southold Code §275-7 (D), the Board has the discretion to hire an outside consultant and require the applicant topay the consultant's fee when the Board determines that the "complexity of the activity, thedifficulty in determining the threat to the resource areas or the size of the request or projectinvolves and requires more information and analysis than can reasonably be supplied to theBoard without independent technical professional assistance." Here, not only did the Board stateat a public hearing that the application was complicated, but the petitioners' expertacknowledged that the proposal presented "a difficult application" for the Board.
Although the Supreme Court incorrectly concluded that the Board improperly engaged theoutside consultant and required the petitioners to pay its fee, the Supreme Court properlyannulled the Board's determination. In reaching its determination, the Board relied, inter alia, onthe recommendation of a local waterfront revitalization program (hereinafter LWRP)coordinator, whose recommendation to the Board pursuant to Town of Southold Code §268-5 (D) stated that the application was inconsistent with the LWRP. However, the Boarddetermined that the LWRP coordinator was not qualified to perform the review requiredfollowing a previous submission of the LWRP coordinator's prior recommendation, in which hedetermined that the application was consistent with the LWRP subject to certain conditions.Therefore, the Board's reliance on the LWRP coordinator's subsequent recommendation wasmisplaced. Additionally, the LWRP coordinator's subsequent recommendation failed to complywith the requirements set forth in Town of Southold Code § 268-5 (D).
The Board's reliance on the reports of the outside consultant and the Suffolk CountyDepartment of Health Services also was misplaced. The Board properly noted that whenconflicting expert reports are submitted, "deference must be given to the discretion andcommonsense judgments of the board" (Matter of Retail Prop. Trust v Board of ZoningAppeals of Town of Hempstead, 98 NY2d 190, 196 [2002]). However, here, the outsideconsultant did not opine that the sanitary system would adversely impact the environment(see generally Town of Southold Code § 275-12 [trustees may grant permit if theydetermine that the operations will not substantially, inter alia, adversely affect the wetlands ofthe Town, its wildlife, or the health, safety, and welfare of the people of the Town]), but statedthat it did not know what the impact would be. The outside consultant suggested that thepetitioners' proposed sanitary system should be differently situated. In response, the petitioners'expert modified the sanitary system's design, a fact that the Board did not acknowledge in itsdetermination. The petitioners' expert also provided several bases for his determination that anyenvironmental impact would be de minimis. Like the outside consultant's report, the report of theSuffolk County Department of Health Services did not state that the proposal would have asubstantial adverse impact on the environment. The Board also relied on the Southold TownConservation Advisory Council's recommendation that the petitioners' application bedisapproved. However, that four-sentence recommendation consisted solely of vague "concerns,"and was devoid of scientific data or analysis. Therefore, it was insufficient to counter thepetitioners' expert's report and testimony (cf. Matter of Greenfield v Board of Appeals of Vil. of MassapequaPark, 21 AD3d 556, 557 [2005]; Matter of 450 Sunrise Highway v Town of OysterBay, 287 AD2d 714 [2001]). The record reflects that, instead of considering the petitioners'expert's analysis on the merits, the Board improperly succumbed to community pressure to denythe petitioners' application (see [*3]Matter of Metro Enviro Transfer, LLC v Village ofCroton-on-Hudson, 5 NY3d 236, 240 [2005]; Matter of Twin County RecyclingCorp. v Yevoli, 90 NY2d 1000, 1002 [1997]; Matter of Schumacher v Town of E. Hampton, N.Y. Zoning Bd. ofAppeals, 46 AD3d 691, 693; Matter of Greenfield v Board of Appeals of Vil. ofMassapequa Park, 21 AD3d at 557). Accordingly, the Board's determination was properlyannulled.
The parties' remaining contentions are without merit. Santucci, J.P., Florio, Covello andDickerson, JJ., concur.